Identifying and Advocating Best Practices in the Criminal Justice System. A Texas-Centric Examination of Current Conditions, Reform Initiatives, and Emerging Issues with a Special Emphasis on Capital Punishment.

Monday, 15 July 2013

Warren Hill in Georgia

For years now there have been serious constitutional questions about
Georgia's plan to execute Warren Lee Hill, a man whom all government
doctors now agree is "mentally retarded."* As a matter of fact and law, such an execution is supposed by be barred by the Supreme Court's precedent in Atkins v. Virginia,
a 2002 case in which the justices, by a vote of 6-3, declared that the
Eighth Amendment's prohibition against "cruel and unusual" punishment
precludes the execution of people whose cognitive impairment renders
them unsuitable for the criminal justice system's ultimate punishment.

But
as Hill's execution grows near -- barring relief from the United States
Supreme Court he is scheduled to be put to death tonight at 7 p.m.
EDT-- his lawyers have posed a separate, new constitutional question. In
an series of emergency papers filed in state court late Friday, Hill's
attorneys allege that a brand new Georgia statute, candidly called the
Lethal Injection Secrecy Act, violates Hill's constitutional rights
under both federal and state law because it purposely shields from
judicial review the manner by which the drugs to be used in his
execution were manufactured and obtained.

The argument made by
Hill's lawyers Friday is as simple as the story of Georgia's quest for
lethal injection drugs is complicated. For reasons that are now fairly well-known,
the state has had trouble finding the drug -- Pentobarbital -- that is
required to complete the execution. This is so because the U.S.
manufacturer of the drug ceased to produce it in 2011 after European
manufacturers embargoed its importation here
(because of their objections to its use in American executions). As
"official" supplies of the drug have dwindled, state officials have
resorted to dramatic means -- including possibly unlawful means -- to
obtain it. The Guardian's Ed Pilkington has done a great job of covering this aspect of the story.

In Hill's case, this means that even though the state's experts have
stated categorically and under oath that their prior testimony was
wrong, the courts feel powerless to correct the injustice resulting from
that testimony. As Judge Rosemary Barkett put it, this
leads to the "perverse consequence" that "a federal court must acquiesce
to, even condone, a state's insistence on carrying out the
unconstitutional execution of a mentally retarded person."

Because
of the act, Hill has only one option left to vindicate his
constitutional rights – an "original" habeas petition filed in the
Supreme Court. While most cases reach the Supreme Court on appeal after
having been heard in the lower courts, an "original" petition is filed
for the first time in the Supreme Court. Such petitions date back to
the early 19th century, yet are rarely granted anymore. That should
change, at least in cases such as Hill's.

Per court rules, an
original petition should be granted where "exceptional circumstances
warrant the exercise of the court's discretionary powers" and "adequate
relief cannot be obtained in any other form or from any other court."
Given unanimous opinion that he is mentally retarded and thus ineligible
for execution, Hill's case presents such "exceptional circumstances."

With
just hours before he is set to be put to death, only the Supreme Court
can act to stop it. If it does not, Georgia will execute a man whose
execution the Constitution forbids.

Since AEDPA became law, most of the federal courts that have
interpreted the statute have said it obliged them to defer to state
court rulings. The statute has largely kept federal courts from reaching
the merits in countless cases where lawyers made compelling arguments
that the prisoner deserved to win under the Constitution; the statute
has largely eliminated the federal writ of habeas corpus for state
prisoners. In too many AEDPA cases, federal courts have allowed inmates
on death row to be executed in models of unfairness.

There now exists an illogical chasm between law and justice—between,
on the one hand, the statute’s reflexive antagonism to challenges to the
death penalty and, on the other hand, much of the country’s reckoning
with the failure of states to administer capital punishment
constitutionally.

AEDPA and the Supreme Court all but hide this chasm—and the injustice
it regularly leads to—behind byzantine rules and rulings, making it
exceedingly hard for our legal system to keep the Constitution’s promise
that habeas will be available to prevent the most serious deprivations
of liberty. Rather than a grand means to break an evil spell, AEDPA is
the opposite.

The planned execution on July 15, 2013, of Georgia
prisoner Warren Hill –who has been diagnosed as ‘mentally disabled’- is a
gross violation of U.S. federal laws and specifically of the 8th
amendment that reads, “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishment inflicted.’
The U.S. Supreme Court has ruled that criminal sentences that are
inhuman, outrageous, or shocking to the social conscience are cruel and
unusual.

Mental retardation is now generally referred to as a developmental or intellectual disability. Because it has a specific meaning with respect to capital cases, I continue to use the older term on the website.

More on Atkins v. Virginia,
the Supreme Court's 2002 ruling banning the execution of those with
mental retardation, is via Oyez. Related posts are in the mental retardation category index.

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The StandDown Texas Project

The StandDown Texas Project was organized in 2000 to advocate a moratorium on executions and a state-sponsored review of Texas' application of the death penalty.
To stand down is to go off duty temporarily, especially to review safety procedures.

Steve Hall

Project Director Steve Hall was chief of staff to the Attorney General of Texas from 1983-1991; he was an administrator of the Texas Resource Center from 1993-1995. He has worked for the U.S. Congress and several Texas legislators. Hall is a former journalist.